from the substantial-non-infringing-uses dept

We've been following the surprisingly weak case that the MPAA filed against Hotfile for some time -- and, in some ways it's become even more important lately as a sort of "civil analog" to the criminal case against Megaupload. Hotfile and Megaupload have many similarities, and the arguments against both seem to make the same highly questionable assumptions -- taking perfectly legitimate actions and insisting that they must have been done for nefarious purposes. For example, in both cases, the fact that the companies offered "affiliate programs" that allowed users to make some revenue on frequently downloaded works was used as evidence that they were inducing infringement. But what the facts are showing is that this was quite often used to create legitimate and lucrative new business models for creators themselves. When Megaupload was taken down, for example, hip hop superstar Busta Rhymes argued vociferously that it was a fantastic way to make money -- with much, much better terms than major labels. That's because he (and lots of other artists) could release their own content through these platforms, allow consumers to get them for free, and get a large cut of the ad and subscription revenue.

It appears that this was also a popular use on Hotfile. TorrentFreak obtained a filing from copyright expert and law professor James Boyle, in which he points out that open source developers were using Hotfile's affiliate program as a business model, and, in fact that open source downloads were incredibly popular on the platform, very likely representing one-third of the top 100 downloads, adding up to millions of downloads.

The standard for infringement under the Betamax ruling is supposed to be if there are substantial non-infringing uses of the technology, and that certainly appears to be the case here.

Boyle also points out other ridiculous problems with Hollywood's "expert" report trying to claim that Hotfile was almost always used for infringement. For example, he notes that the report appears to have purposely excluded approximately 60% of the files on Hotfile. Hollywood's experts ignored files that were never downloaded or only downloaded once. Yet, as Boyle points out, the point of a cyberlocker is to store files -- and many people likely put files up so that they could be stored in case they were ever needed. Thus ignoring the 60% of files that were never downloaded or only downloaded once, excludes the fact that many of those may have been for perfectly reasonable and legitimate purposes of backup, storage or place/time-shifting. Basically, it looks like the MPAA's "experts" ignored anything that was inconvenient.

And it gets worse. The so-called "experts" that the MPAA found seemed to classify works as "highly likely infringing" despite there being significant evidence that they were perfectly legitimate works to be shared. Perhaps the most egregious example was a copy of a Russian book on embroidery published in 1871. No matter how you look at it, a book published in 1871 is in the public domain. But the MPAA's expert listed it as highly likely infringing. Then, when called out on that, the expert said that maybe there were new works in the book and would only downgrade his classification to "unknowable" rather than admitting it was public domain.

Mr. Zebrak’s classification here was inexplicable tome in my rebuttal report and remains so now. He argues that there could be copyrightable selection and arrangement in the illustrations of this work, even though both the original work and the illustrations are clearly in the public domain. I dealt with and dismissed this possibility in my rebuttal report – indeed the site to which he cites in his original argument for infringing status explicitly identifies this exact book, in unchanged order and arrangement, as being published in 1871 in St. Petersburg. This book is at the most conservative possible classification,“highly likely in the public domain.” Mr. Zebrak will not concede even this, though he does at least change his classification to “Unknowable.” Again, I think the refusal to admit evenoverwhelming evidence like this indicates a predisposition to find infringement that is worryingly strong – and that predisposition appears to be a general one, which therefore has significance far beyond the files I was able to examine in the time available to me.

Similarly troubling, the MPAA's experts took a freely distributable podcast, and insisted that, too, was "highly likely infringing." Podcasts are usually distributed for free, and since bandwidth costs are expensive, many podcast creators love using cyberlockers like Hotfile or Megaupload as a free storage and distribution platform. But the MPAA's "expert" insists that it's highly likely infringing. And it gets worse: even after the creator of the podcast said he was happy with its free redistribution, the MPAA's expert used iTunes terms of service to argue that it was still infringing. Except iTunes terms of service have nothing to do with the podcast:

Photography 101 Podcast: This podcast is an example, again, of the same theme .As I pointed out in my rebuttal report, the podcast is in fact offered for free download online and its author confirms that he does not object to its redistribution. Mr. Zebrak – somewhat puzzlingly – introduces the iTunes terms of service into the picture, apparently imagining that iTunes has the ability to affect the copyright status of a work in which it holds no copyright. It does not. Mr. Wittenburg holds the copyright in his podcasts. He allows people to download them freely and to repost them and says so explicitly in his affidavit. There is no evidence that the version of the podcast posted on Hotfile even came from iTunes. Mr. Wittenburg refers to the podcasts being available in multiple locations online. Even if it did, the iTunes terms of service are a red herring. I may give a lecture which I record and post online, posting it also on iTunes. I hold the copyright and I may choose to allow posting and reposting as I wish. Copyright law gives iTunes no rights over the program and no rights to circumscribe what I allow with my own podcast – they have no copyright to infringe – and thus the claim that the file is "highly likely infringing" cannot be supported on this basis.

Reports like this raise significant concerns about the claims against Hotfile (and similar sites).

No true pirate site like Hotfile would have legitimate files stored on its servers, therefore, all of Hotfile's files are clearly infringing and there's simply no need to check the actual files to see if they are indeed infringing. Pirates sites are full of pirate-y badness pirate pirate piracy theft stealing stolen scumbag broadbrush freetard... What were we talking about again?

"Hollywood's experts ignored files that were never downloaded or only downloaded once. Yet, as Boyle points out, the point of a cyberlocker is to store files -- and many people likely put files up so that they could be stored in case they were ever needed. Thus ignoring the 60% of files that were never downloaded or only downloaded once, excludes the fact that many of those may have been for perfectly reasonable and legitimate purposes of backup, storage or place/time-shifting. Basically, it looks like the MPAA's "experts" ignored anything that was inconvenient. "

No, this is a nice way to try to spin reality. On sites like Megaupload, where 90% of the members were ONLY downloading, the number of downloads on a file is very important to show actual site activity, and to show what the site is used for.

Single use files may be storage, or may be nothing other than someone passing something to a friend one time, without intent to share beyond that.

You might have done better to point that the most popular hotfile item was ireb:

However, even this report clearly shows slant, because they listed the top couple, but then didn't go on to show say the top 100 files. That would have been a different story.

The question is what Hotfile was being used for by a majority of it's users, and single use files just don't make up the majority of the activity. Nice try Mike, another set of cherry picked facts fall flat.

According to MPAA Experts 972% of the links on google are infringing. Maybe they're counting alternate realities"It has to be that!". I'm sure if they added enough of them together they can get to their absurd figures.

Useful

It's quite an indictment of the state of copyright law today that a copyright expert can claim that the copyright status of a particular work is "unknowable" - not "unknown", mind you, but "unknowable". So he believes that it is not possible to determine whether this work is copyrighted or not (let alone who owns any copyright that it may be subject to).

One of the fundamentals of any law is certainty - it should never be "unknowable" whether an act is legal or not.

Re: A lie by any other name is still...

I am getting so fed up with this krap I keep reading I need to do something about it.I live in Maine and would like to get a Maine Pirate Party going.It is time to motivate the Youth and get this Anti-Establishment Movement going.I am Jordan the lead singer and founder of Maine's oldest punk band, "Big Meat Hammer".
Democrats & Republicans are going to keep selling us out over and over.

http://wh.gov/U19
Sign my Petition and help stop CISPA
Let us all try to stop this Atrocious intrusion of our Privacy and yet another attempt to Censor The Internet !!
Please tell as many as you can and call Washington and your Reps.
Jordan Maine's Oldest Punk Warned you SOPA/PIPA Would be back.
Now we must work to try and stop this latest assault on our Freedom and the Freedom of The Internet !!!
Corporations Are Not People

This is bad for open source

These sites usually offer pretty crappy free service. If you want to be able to download something, you're sort of pushed and pulled into paying.

The open source projects who use this are essentially setting up sleezy barricades just so they can make a tiny bit of revenue. It's just not a good practice for managing an open source project. If you're going to be open, you should share your content openly and not try a backdoor way to make money.

They're purposely degrading the user experience just to help the bottom line, pretty much the same thing as DRM. Ugh.

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"The MPAA and RIAA would like to paint the picture that all files shared or stored are infringing. They have been successful with congress. "

No they wouldn't. That is a crock of shit, and you know it.

What they are trying to show (and appears to be the case in both Hotfile and Megaupload) is that the vast majority of the active files are pirate material. The vast majority of users are there to download, not upload, and so on.

The 60% figure on single use and no-download use of files is nice, but what portion of the total activity on hotfile does it account for? I would guess less than 1%.

It's a cherry picking of numbers and a framing of the discussion in a manner that is misleading. What did the majority of hotfile users do with the service? They downloaded files. The 60% single use files were clearly not what they were there for.

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Yes those 60% of files might not be majority of the sites traffic but it is kind of hard to say that over half the files on the site don't mean at least something.

Really though all this is unimportant without all the data. I have come to greatly distrust ANY AND ALL "studies". Anyone who knows anything about statistics knows that you can play with the numbers to make them say whatever you want. The only way I trust any of these "studies" is if I have access to ALL the data.

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The question is what Hotfile was being used for by a majority of it's users,....

That question is immaterial. The standard is that the tool only need to be capable of substantial non-infringing uses. Clearly, both Mega and Hotfile ARE capable of non-infringing uses and were actually used as such. Moreover, some of those uses actually benefited the right's holders.

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They wouldn't? Then why did they do that verbatim with their own report on Hotfile?

Majority is irrelevant. It's a question of significant non-infringing use. If the most popular downloads are non-infringing that comes pretty close to being enough full stop to show that there is significant non-infringing use.

The 60% figure on single user means 60% of the uploading was for storage purposes i.e. a majority of the uploads were done for non-infringing purposes. Continue making the bullshit claim that download counts somehow weight the other 40% to make up a majority though. It's not obviously just desperate 'cherry picking of numbers,' to borrow a phrase.

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They wouldn't? Then why did they do that verbatim with their own report on Hotfile?

Majority is irrelevant. It's a question of significant non-infringing use. If the most popular downloads are non-infringing that comes pretty close to being enough full stop to show that there is significant non-infringing use.

The 60% figure on single user means 60% of the uploading was for storage purposes i.e. a majority of the uploads were done for non-infringing purposes. Continue making the bullshit claim that download counts somehow weight the other 40% to make up a majority though. It's not obviously just desperate 'cherry picking of numbers,' to borrow a phrase.

Re: Re: A lie by any other name is still...

'the MPAA's "experts" ignored anything that was inconvenient'. wrong term there. shouldn't have been 'inconvenient', more like damning to the MPAA is nearer the mark! but then, when have any of the entertainment industries told the truth?

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Based on the Megaupload case, it was revealed already that 90% of the members were download only. There is no reason to expect other file locker sites to have a different pattern, especially considering that hotfile and mega were used in similar manners online.

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"Yes those 60% of files might not be majority of the sites traffic but it is kind of hard to say that over half the files on the site don't mean at least something. "

You don't have to think hard to realize why.

If 60% of the files are accessed either once or never, then 40% of the files are getting the vast majority of the traffic. Why is this hard to understand?

In statistical terms, the 60% of files represent a very small percentage of the total user experience with hotfile. The site after all is in the top 400 sites in the world. If 60% of that traffic was uploading single use files, they would need a huge amount of storage. It's just not the case, based on everything we can see about file locker sites.

You can enjoy ALL the data - what Mike is misrepresenting here is that the number of files on a system (many never accessed at all) isn't an indication of what users were doing. It's what the users were actually doing that counts, and in that regard, the MPAA report is spot on and exact.

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"Wrong, the legal question is if there are significant non-infringing uses."

If very few of the users are actually uploading files at all, what is the significant use?

With many files with no accesses at all, could they be nothing more than decoy files? How are they broken down? Are they files within someone's account never accessed, while the other file (dvd rip) has been downloaded thousands of times?

What was the average user doing with hotfile? Downloading, not uploading. That says it all right there.

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You can enjoy ALL the data - what Mike is misrepresenting here is that the number of files on a system (many never accessed at all) isn't an indication of what users were doing.

Sorry, but Mike addressed that very thing. The fact that most files were never accessed is indeed a very good indication of what users were doing: using the site as a perfectly legal file locker for backups and storage.

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So you are finally getting it? That the old traditional "middle man" music recording and book publishing business model is seriously threatened. The actual content producers (musicians and authors) and their customers/fans are only a mouse click apart. No need for the heavily skimming Publisher and Recording Company middle man. Musicians and Authors have a new, and probably better marketing venue, and the non-value-added Publishers and Recording companies are on the way out when the rights to their current copyright locked up inventory runs out.

Check the history of the Horse Carriages and the Automobile, and the Henry Ford "car in every driveway, at $100.00 each" mantra. The shake up and reaction scenario is not a lot different than what is happening here. But "some things never change, and some people never learn".

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So if we hypothetically put those same statistics to the MegaUpload case and let's assume that 80% of the 40% was infringement. Let's say the other 20% was legitimate distribution by artists like Busta Rhymes and open source software distribution mentioned earlier. That means a site where 32% of the data that was infringing would justify the other 68% losing their data in a government take down that had no due process?

Silly boy

I subscribe fully to the free software/open source movement, but I don't see why you think "open source" means you're entitled to get software at no cost and with good service, just that you should have control over it once you do have it.

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What they are trying to show (and appears to be the case in both Hotfile and Megaupload) is that the vast majority of the active files are pirate material. The vast majority of users are there to download, not upload, and so on.

Even if true this would not meet the legal test which is a positive test for "substantial legal use". IF there is substantial legal use then the amount, even the proportion, of infringing use is irrelevant.

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You're a crock of shit. By your reasoning only people who produce whatever type of entertainment should have access to it? What sort of crazy juice have you been drinking? Damned if I'm only going to make my music available to other musicians.

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He won't give one, nor will he admit that the ratio of download vs. paid upload members has sod all to do with whether the content was infringing, nor imply the ratio of legal vs. infringing content. We've been down this path many times.

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These uploaders ARE users, so you can't just discount their legal activity ("user experience") to give precedent to the downloaders (which may be legal and/or illegal activity) as the entirety of your case. You make claims of Mike misrepresenting, yet you cherry-pick which users to actually call users here and which "user experience" to build your argument around. Hypocrite much?

You think you make a sound argument, but your bias is highly visible in the way you come to your conclusion. "The number of files on a system (many never accessed at all) isn't an indication of what users were doing." If that isn't an indication of what the users were doing then what is it then? To me, and I'm sure others as well, it is an indication that many users were using the platform to backup files for future use if needed and you can't so conveniently dismiss this activity just because it doesn't fit your argument.

"It's what the users were actually doing that counts," so what you are saying is there are users you can ignore while other users, of course those which are of the infringing kind, which should be the sole focus right? So like the MPAA, which thinks some data can be ignored while other data is to be highlighted, you also share in their same substandard rigor in making a case which you confirm with "and in that regard, the MPAA report is spot on and exact."

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"I would guess less than 1%." You guess? How can you have a credible argument about numbers and stats where you guess? What is the data you are working with here? Do you know the amount of traffic and how it breaks down to uploaders and downloaders? Do you have any idea of what percent of the "active" files were infringing? Or were you guessing at all this too? Then you have the gall to accuse others of cherry picking numbers, but at least they were real percentages and not guesses! You sir are a fool.

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This is sound logic right here to build a case on: because one site was 90% download one should just assume that holds for all others. Therefore if one file was used for infringement then all files will be infringing, and if one locker site was used for infringement then we can deduce that all locker sites are used as such without having to actually investigate and substantiate these claims. You're a regular Sherlock Holmes...

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Don't be daft. If 60% of the file are either accessed once or never, there represent a very small amount of traffic and requests. 1% is GENEROUS.

And yet again (and again and again and....) you ignore the purpose of a cyberlocker and cherry pick your favorite figures.

Traffic is not usage. Putting a file there and leaving it there until you need it is just as much "usage" as downloading one already there. So the best that can be said for the "facts" is that if 60% of the files aren't regularly downloaded then they are significantly less likely to be infringing. These files, whether they have "traffic" statistics or not are very much part of the "usage" of the site no matter how loud you scream and rant.

I also note that you seem to be attempting to imply that a "download only" account is de-facto infringing when a/ there are plenty of provable legitimate downloads and b/ it seems as per the article that some portion of the download traffic labelled as infringing is, in fact, not infringing at all and is therefore also legitimate.

So that leads me to 2 conclusions; 1/ It seems obvious there are significant non-infringing usages of the site.
and
2/ You, apparantly much like Mr. Zebrak, appear to have a significant resemblance to someone full of the brown sticky odiferous stuff.

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Please provide numbers. If I'm uploading infringing content for distribution why would I keep the link for myself? You keep vomiting assumptions without any evidence.

I'll crush your evidence right here right now. Recently I participated in the production of a 400 page report where a crew of 15 ppl was involved along with 2 others that were doing the layout and editing of the documents (for printing purposes). We were working with high quality graphical stuff such as maps and satellite photos so e-mails were a no-go. We turned to Rapidshare, a clone of Hotfile (and vice-versa) to share the files. We signed up a premium account where we'd upload the material that needed to be shared among the crew and the editors. We uploaded over 20Gb of material and downloaded at least 200Gb (multiple downloads of the same files). None of the activity was infringing.

I'll go further and tell you about the experience of my friend with Megaupload. He used MU as some sort of USB stick, he'd simply fire up his mobile browser and download the content whenever he needed. That included mp3 he owned the physical media (and obviously said infringing music too) but he was the only uploader and the only downloader. He also used it for other activities such as downloading open source software and some Japanese content there's no way to watch other than getting fansubbed material (if memory serves he was following a few j-dramas and live actions last time I asked).

While I can't provide evidence for what I'm telling (the premium account we used has been deleted after we were done) it is a personal experience that seems to disagree with you and the MAFIAA. So please, stop pulling assumptions and statistics from your ass and start providing evidence.

hotfile premium

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---- What did the majority of hotfile users do with the service? They downloaded files. The 60% single use files were clearly not what they were there for.--- [citation needed or you're just shilling / pulling information out of your ass]